Major FL Court AFFIRMS Cocaine Conviction Despite Entrapment Concerns: “No Evidence”

April 23, 2026 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 4th District Court of Appeal ruled that a defendant was not entitled to an entrapment jury instruction because there was no evidence that he was induced to commit the charged crime and he introduced no evidence of his lack of predisposition to do so.

CASE: Davis v. State, 937 So.2d 300 (Fla. 4th DCA 2006)

Charge(s): Sale of Cocaine

Outcome: Conviction AFFIRMED, as there was no evidence in the record to support a defense of entrapment – so the trial judge did not err by failing to give an entrapment jury instruction.

Entrapment in Florida

In Florida, entrapment is a TOTAL DEFENSE to criminal charges. Entrapment occurs when law enforcement uses impermissible tactics to get a person to commit a crime that would NOT have otherwise occurred but for their intervention. 

Two forms of entrapment are recognized under Florida law. The first is OBJECTIVE entrapment, and the second is SUBJECTIVE entrapment. The difference between them is vital to understand if someone wishes to maximize their chances of successfully relying upon an entrapment defense in a Florida criminal case.

Objective entrapment occurs when law enforcement acts SO EGREGIOUSLY in manufacturing (bringing about) a crime, that prosecuting the defendant for it would violate their constitutional due process rights – even if they are guilty. This is the case even if a defendant was predisposed to commit the offense. For more, click here.

Florida courts are usually reluctant to rule that a defendant was objectively entrapped. However, some examples of cases in which objective entrapment has been found include:

• A police task force sends child pornography through the mail to arrest someone for possessing it (Farley v. State, 848 So.2d 393, 397-98 (Fla. 4th DCA 2003))
• A law enforcement officer or informant enters a sexual relationship with the defendant to get them to act criminally (Madera v. State, 943 So.2d 960 (Fla. 4th DCA 2006))
• Law enforcement manufactures drugs at the police station to sell to people on the street while undercover, only to arrest people when they try to buy them (State v. Williams, 623 So.2d 462, 466 (Fla. 1993))

It is important to note that objective entrapment is only argued as a matter of law (to the judge – not the jury). Since this is not a question for the jury, dismissal for objective entrapment can only be moved for in a pretrial motion to dismiss OR a motion for judgment of acquittal during trial. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

Critically, objective entrapment does not occur simply because someone was ensnared in a police sting operation. Law enforcement has broad discretion to engage in undercover activity – so long as they do not engage in any unethical conduct that violates a defendant’s due process rights. To learn more, click here.

The second form of entrapment, which is more commonly argued, is SUBJECTIVE entrapment. Subjective entrapment occurs when law enforcement induces a non-predisposed individual to act unlawfully (commit a crime). FL’s subjective entrapment law is codified by Fla. Stat. 777.201 – and in Munoz v. State, 629 So. 2d 90 (Fla. 1993), a Florida Supreme Court decision.

Unlike objective entrapment, subjective entrapment can be argued BOTH as a matter of law (to the judge) and as a defense at trial (to the jury). This gives someone “layers” of insulation from potential conviction that do not exist if objective entrapment is relied upon as a defense.

But what must occur for someone to be found NOT GUILTY by subjective entrapment? For such a defense to succeed, a defendant must first prove by a preponderance (majority) of the evidence that they were improperly INDUCED to commit the charged offense(s). Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013) 

Many believe this means a defendant must simply allege that law enforcement “caused” them to act. But this is not the case – more is required. The police must have relied upon impermissible tactics to bring about the criminality, such as:

• Persuasion, fraudulent representations, threats, and coercive tactics
• Harassment, promises of reward, or pleas based on need, sympathy or friendship” (State v. Henderson, 955 So.2d 1193, 1195 (Fla. 4th DCA 2007))

However, it is NOT required for someone to prove that law enforcement did all of this. Even if one inducement tactic has a causal nexus to the defendant’s behavior, the inducement prong of the subjective entrapment test has been satisfied.

If inducement is proven by a preponderance of the evidence, the burden of proof SHIFTS to the State to establish the defendant was PREDISPOSED to commit the charged offenses beyond a reasonable doubt. The State must show a defendant was “ready and willing, without persuasion” to commit the charged crime(s) in the ABSENCE of police inducement.

To establish predisposition, the State may use evidence of a defendant’s criminal history (so long as it is relevant to the charge) and, in some cases, the defendant’s “ready acquiescence” to illicit activity after they were induced. State v. Lopez-Garcia, 356 So. 3d 857 (Fla. 2d. DCA 2022)

If inducement is shown to have occurred by a preponderance of the evidence and the State can’t prove predisposition beyond a reasonable doubt, the defendant is entitled to DISMISSAL of the charges as a matter of law if no reasonable jury could conclude differently (e.g. find a defendant was not induced/was predisposed). Munoz v. State, 629 So. 2d 90 (Fla. 1993)

Note: To learn more about inducement for entrapment purposes, click here. To learn more about predisposition, click here.

In almost all cases where a defendant argues they were subjectively entrapped at trial, a jury instruction will be given that details the “prongs” of the subjective entrapment. After receiving that instruction, the jury can either render a guilty verdict (if they believe subjective entrapment did not occur), or a not guilty verdict on the basis of subjective entrapment.

However, in very rare cases, a trial judge may decide that no subjective entrapment instruction to the jury is warranted at all. Defendants are entitled to a jury instruction on potentially applicable defenses if any evidence is offered into the trial record supporting that defense. Hall v. State, 326 So.3d 1188 (Fla. 1st DCA 2021)

But this rule does not apply when NO evidence to support the defense is offered. And with a lack of a special jury instruction on subjective entrapment, chances are high that the defendant will be found guilty if they “hung their hat” on that defense.

In one subjective entrapment case heard by Florida’s 4th District Court of Appeal, the defendant was accused of selling cocaine to a confidential informant. He was ultimately convicted.

At trial, the defendant argued he was subjectively entrapped. However, the evidence to support his defense was weak (at best). He requested a special jury instruction from the trial judge on the defense of subjective entrapment – which would’ve allowed the jury to evaluate whether he was impermissibly induced and was not predisposed to sell cocaine.

The judge denied the defense’s motion for the special instruction – and the defendant was found guilty. On appeal to the 4th DCA (Southeast Florida’s highest court), the defendant asserted that the trial judge erred as a matter of law by failing to give the subjective entrapment instruction.

The 4th DCA disagreed and AFFIRMED the defendant’s conviction. The 4th DCA ruled that the trial judge’s decision not to provide the jury a special instruction on subjective entrapment was correct. But why?

Let’s take a look at this case – Davis v. State, 937 So.2d 300 (Fla. 4th DCA 2006) – and discuss what it means for defendants in Florida seeking to assert an entrapment defense.

KEY CASE: Davis v. State, 937 So.2d 300 (Fla. 4th DCA 2006)

In Davis, the defendant (Davis) was charged with sale of cocaine to a confidential informant. He was ultimately convicted after the trial judge refused to give the jury a requested instruction on the defense of subjective entrapment. At trial, the following facts were revealed:

• Davis was arrested for sale of cocaine to a confidential informant, who had worked in multiple stings with the Indian River Sheriff’s Office
• The CI conducted the purchase wearing “loose-fitting” clothes
• Undercover law enforcement listened in on the transaction and recorded video of the sale 
• Davis was eventually apprehended
• At trial, Davis claimed he was induced into selling the cocaine because of the revealing clothing the female CI was wearing
• Davis alleged the garments showed her entire breast and claimed she discussed having sex with him if she sold the cocaine
• However, the recording of the conversation revealed that the “sexual banter” was far less “suggestive” than Davis claimed, and actually occurred between the CI and ANOTHER MALE who was with Davis at the time of the sale
• This was prompted by the other male making comments about the CI’s “good looks”
• The CI also testified that she wore a tank top, loose cotton shorts, and sandals to fit the role of a “crack buyer”
• Davis requested a subjective entrapment jury instruction, arguing the improper innuendo of the CI, her manner of dress, and “impetus to produce charges” for law enforcement as a professional confidential informant raised an inference of inducement 
• However, the judge DENIED Davis’s motion and no instruction was given to the jury
• Davis was found guilty as charged

On appeal, Davis asserted that the judge erred as a matter of law by failing to give the requested instruction. Davis cited Thomas v. State, 547 So.2d 989 (Fla. 1st DCA 1989) – which noted that defendants are entitled to a subjective entrapment jury instruction if even “some” of the evidence at trial supports the possibility of entrapment having occurred.

However, the 4th DCA REJECTED Davis’s argument and affirmed his conviction. Finding that Davis introduced no actual evidence to support his claim that he was improperly induced (by the CIs clothing/conduct), and no proof that he was not predisposed to commit drug crimes, the 4th DCA wrote:

“We hold that Davis failed to demonstrate he was induced to commit the crime by the CI’s dress or her “conversation” about sex and he failed to put forth any evidence of lack of predisposition. Davis’s claim that he was induced to sell the crack cocaine simply by the CI being a white woman in a predominately African-American neighborhood, and by her wearing loose-fitting clothing, is without merit and not deserving of further discussion. With regard to the “conversation” about sex, the record demonstrates that the small talk actually took place after Davis’s return from getting the crack cocaine the CI offered to buy. During this brief post-purchase conversation, Davis asked the CI if she wanted to “hang out” and attempted to kiss her. She made it clear, however, that she was not interested.”

“Such talk occurring after the sale could not have served as an inducement to Davis to commit the crime. Finally, Davis failed to present any evidence of lack of predisposition. Munoz, 629 So.2d at 99 (defendant initially has burden to establish predisposition). The evidence in the record demonstrated that Davis approached the CI, who told him what she was looking for but expressed some reluctance at turning over the money, telling him she had been robbed before. Davis gave the CI assurances that he could get the crack from his friend parked in a car on the other side of the bar. And he did just that. Clearly, Davis was ready and willing to sell the crack cocaine at that opportune moment. Accordingly, the trial judge did not err in refusing to give an entrapment instruction to the jury.”

Put simply, Davis approached the CI and arranged a drug sale with her. The fact that the CI was wearing potentially “revealing” clothing, without more, was not evidence of inducement. Thus, Davis’s conviction was upheld, as he had no proof of subjective entrapment.

In sum, Davis v. State, 937 So.2d 300 (Fla. 4th DCA 2006) marks a significant development in Florida’s corpus of case law surrounding ENTRAPMENT – and when special jury instructions are required in cases involving allegations of subjective entrapment. The 4th DCA (Southeast FL’s highest court) held that:

• There was no evidence Davis was improperly induced to sell cocaine
• Davis volunteered to do so, and the mere fact that he found the CI attractive did not mean she was improperly using sex to lure him into unlawful behavior
• There was also strong evidence of his predisposition (immediately telling the CI he could procure cocaine for her and doing so)
• Thus, Davis had NO evidence he was induced and no evidence he was not predisposed
• As a result, there was no basis for a subjective entrapment jury instruction
• This required that his conviction be AFFIRMED

Florida’s criminal defense community should take note of Davis v. State, 937 So.2d 300 (Fla. 4th DCA 2006), as it makes clear that in very rare cases, a defendant may NOT be entitled to a jury instruction on entrapment.

If someone is arrested and formally charged in Florida in a case and has a potential entrapment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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